The whistleblower and the war criminal: David McBride and Ben Roberts-Smith

Under the thick fog of the 9/11 attacks, John Howard — ordinarily not given to vaulting, Churchillian oratory — delivered a thundering address to the Australian Defence Association (ADA) in late October 2001 on his decision to commit Australia to what would prove an unwinnable war. 

Threaded with righteous anger, the speech inveighed against the “false criticisms”, “false positions and false attitudes” of anyone who would dare question or find themselves opposed to the purpose or conduct of the Afghanistan mission. It then declared the dangers of “passive indifference in the face of evil” and the need to “banish terrorism from the face of the earth”. The arc of history was, he insisted, at an inflection point, and something must give. 

Two decades on, the longest war in Australian history would end in ignominy, having snatched not victory but defeat along with the lives of countless civilians and 41 Australian troops. Hundreds were also wounded, and the conflict’s human toll staggeringly pressed at least another 500 veterans to take their own lives. 

But beyond the frontier of these grim realities, the long shadow of the war lingers, with the nation now confronting another inflection point. The urgent and ubiquitous question of the present moment is accountability, both legal and political, as well as moral. And yet it’s proving frighteningly elusive. 

In a nod to the dismal state of the country’s institutional fabric, the government’s counteroffensive against whistleblowers and criminal sanctions for war crimes rages unabated, with issues of timely prosecutions, command responsibility and war crimes reparations for Afghans falling to the wayside.  

And as if to cement the impression the country remains wedded to a less free, more secret and more morally compromised version of itself, one of the two people to face criminal prosecution is not a war criminal but a whistleblower, Major David McBride.  

“You can go to jail for simply being a dissenter in Australia,” the former military lawyer says during a lengthy interview in Sydney’s Hyde Park. “I used to believe we lived in a fair country with the rule of law,” he adds, pointing over at the Anzac Memorial. “But my confidence has been deeply shaken. We have very overblown secrecy regimes, which shows how far we’ve gone since 9/11.”

McBride will stand trial in November for leaking hundreds of pages of top-secret documents — many marked AUSTEO (Australian Eyes Only) — disclosing arguable war crimes by Australian special forces as well as a disturbing culture of impunity. Beyond finding reflection in the subsequent Brereton report, the eventual publication of these documents by the ABC in 2017 led to the shocking federal police raid on the national public broadcaster two years later. 

Such conduct, McBride says, has morphed into a familiar cadence. As recently as October, in a move that reportedly took lawyers for the Attorney-General’s Department by surprise, Defence Department lawyers cited national security concerns to quash McBride’s bid to enliven the only defence available to him under the nation’s broken whistleblower laws. 

At the time, McBride told media that the government was playing the “national security card to the absolute hilt”. And though he maintains that view, he tells me it would be a mistake to believe it was only his impending trial that had fallen victim to the jaws of secrecy. On the contrary, prerogatives of secrecy and a preoccupation with what former SAS captain Andrew Hastie has called a “stage-managed” and “carefully crafted information operation” blanketed Australia’s contribution to the Afghanistan theatre from its inception. 

It’s from this vantage point that McBride sees those who committed war crimes in Australia’s name as but a part — albeit a disgraceful and shameful part — of the story that is the failure of the Afghanistan mission. The larger story, and the one he says both command and government have long distanced themselves from — aided by the Brereton report — is how and why such conduct was permitted to flourish to begin with. 

An ill-conceived military campaign 

As McBride tells it, the first piece to this thorny jigsaw lies in the ill-conceived campaign underpinning Australia’s involvement in Afghanistan. The ostensible aims of the war, as Howard’s October 2001 ADA speech made clear, were never in doubt: “destroy al-Qaeda” and prevent it from using Afghanistan as a “base from which to operate”.

Such objectives, Howard told those gathered, would overwhelmingly be met through the heavy rotation of SAS soldiers acting “under the direction of the Australian [Defence] Force commander and ultimately the Australian government”. 

The ensuing difficulty, of course, was always one of translating such lofty goals into a compelling and common military strategy among allied forces. McBride, who read law at Sydney and Oxford universities before completing military training at Sandhurst, says there was never a “workable plan”. 

“The plan for Afghanistan was never going to work, and the idea we could then somehow simultaneously make it into Switzerland when we knew it was impossible was a deceit,” he says.

It’s a view reflected in the recent words of former Labor MP and defence minister Joel Fitzgibbon, who, unspooled from the constraints of internal party discipline, told Guardian Australia he was commonly frustrated at the “confused and vague” nature of military objectives in Afghanistan: “The question is whether the US should have stayed out of Afghanistan, because once the US was in, given our alliance commitments … we were always going to be by their side.” 

No one seriously doubts Australia’s involvement in Afghanistan owed chiefly, if not entirely, to the preservation of the US alliance, rather than counter-terrorism or support for a fledgling democracy in a faraway country. In McBride’s view, it was the weight carried by this particular “tangential purpose”, tempered with the vice of nationalism and dehumanising “war on terror” rhetoric, which conspired to undermine morale and breed a dangerous cynicism among soldiers. 

When combined with the blind bipartisan reverence and dependence on SAS troops and the absence of any military strategy, he explains, what laid in wait was a moral vacuum where war crimes could occur with seeming impunity. 

“War is a very serious business — you need to have the moral high ground and believe what you’re doing is right,” McBride says, reflecting not only on his two deployments in Afghanistan but his service as a British soldier in Northern Ireland and Germany at the close of the Cold War.

“If you’re only there so Australia can ingratiate itself with the US, everything quickly becomes about managing appearances and keeping the US happy rather than trying to help the Afghan people. What it did here is reduce the war to a PR exercise.”  

Governments’ concealed culpability 

It’s for such reasons McBride sees senior politicians from the Howard and Rudd-Gillard eras as bearing at least some culpability for Afghanistan war crimes. McBride doesn’t go as far as that of World War I official war historian Charles Bean, who once said “any blame” for atrocities must by rights be sheeted home to those “who make wars, not those who fight them”. 

His point, conversely, is simply that it was the government “calling the shots, creating and shaping the conditions out there”.  

So much finds reflection in Howard’s 2001 speech, where he noted SAS troops would “act under the direction” of ADF command and “ultimately the Australian government”, and so too the opinions of other Australian veterans. Some, in this connection, have cited the infamous search-and-kill raid led by disgraced war hero Ben Roberts-Smith on the somnolent village of Sola in August 2012 as an incident that can be traced directly to the minister for defence.  

That particular mission, strongly condemned as unauthorised and unlawful by the then-Afghan government, resulted in the beatings of several civilians and the deaths of two others, with the latter concealed in the usual way of things as lawful killings. Notwithstanding subsequent investigations into the atrocity, which found all victims were civilians, the Australian government’s official position that the mission was both authorised and lawful has never been revoked. 

It’s narratives such as these which place revelations about the gap between public assurances regarding the war’s progress and statements behind closed doors in a new light.

Courtesy of the trove of cables published by WikiLeaks in 2010, for instance, it’s a matter of public record that the Rudd government was deeply pessimistic about Afghanistan’s long-term prognosis and the broader failures of the US-led mission, and yet chose not to fully convey such concerns to the public. 

Nine years later, similar revelations concerning US officials were unveiled in a high-level investigation by The Washington Post, with generals, diplomats and politicians revealed as having lied to the public throughout the entire 18-year campaign, regularly making “rosy pronouncements” about the state and conduct of the war that “they knew to be false”.  

There are, of course, some who have cast doubt on McBride’s suspicions regarding the stage-managed nature of the Afghanistan war and its problematic sanitising consequences, labelling them “far-fetched” or offensive. But none of the bare facts disclosed by the WikiLeaks and Washington Post revelations, nor the supporting statements of Hastie, are so easily pressed into the service of that narrative. 

As things stand, it’s now known that a sizeable group of SAS troops engaged in blind hero worship, conflating their status with an entitlement to righteous violence unmoored from the rules and norms of war. In the result, an unknown number of Afghan civilians and prisoners were murdered and tortured for sport and bonding, the crimes thinly disguised as a matter of routine. A secret military report has also detailed claims of “sanctioned massacres”, where soldiers would shoot men, women and children running from helicopters, as well as a number of concerning norms such as bloodlust and competitions for kill counts. 

Beyond this, media reports have since emerged of soldiers having regularly brandished racist and white supremacist symbolism or insignia as they carried out their duties, such as flying Nazi flags over tanks and using the Confederate flag to demarcate where helicopters should land. Several also donned the Crusader’s cross on their uniforms during missions — a fact plainly known to the Department of Defence from at least 2011, given it had by then doctored a well-known photo of Roberts-Smith sporting the Crusader’s cross before sending it to the Australian War Memorial for public display.  

The department’s actions in this instance, to McBride’s mind, were emblematic of the general lengths it was willing to go to protect those it “lionised” by design and ensure the long calm of secrecy remained undisturbed. 

Cracks in the regime of secrecy

Any suggestion that the barricades of secrecy and silence surrounding defence operations were starting to fracture under the weight of war crimes rumours only truly emerged in late 2012 and early 2013, at the height of alleged incidents. 

It was mid-2013, for instance, when the ABC reported a unit of SAS soldiers was under investigation for chopping off the hands and mutilating the corpse of at least one Afghan insurgent in violation of the rules of war. The same line of reports also referenced whistleblower accounts from 2011, which claimed troops had hung the legs of a dead insurgent out of a taxi window in an incident that became known to soldiers as the “Weekend at Bernie’s” episode.

The Sola village raid of late 2012 had also made international headlines, and by this point whispers of Roberts-Smith having kicked a handcuffed civilian off a cliff were entering the warped terrain of legend. At the fallen war hero’s recent defamation trial, for instance, evidence was given that not only was the murder widely discussed, but a drawing of a stick figure being kicked off a cliff by a “winged penis” was posted at headquarters. 

Hastie, who said he’d heard the same rumour from “multiple people”, told the court that within weeks of the murder, Roberts-Smith walked by him after executing two prisoners and said: “Just a couple more dead cunts.”  

It was against the backdrop of such incidents, rumours and growing media attention that the then-chief of the Defence Force David Hurley issued an unexpected directive in April 2013, warning troops they could be tried for war crimes if there was a “substantial risk” any person targeted was not an insurgent engaged in hostilities.  

McBride told me that at first, and even allowing for all the rumours, the directive struck him as decidedly odd, given the official position on all missions was that “nothing had gone wrong”. “It’s a bit like going to work and finding your boss has put a poster up saying, ‘There will be consequences if you steal.’ Your initial reaction, of course, is, ‘Well, who do they think has been stealing?’”

But instead of being asked to probe high-profile war criminals such as Roberts-Smith, McBride says he found himself pressured to build a case against soldiers whose conduct did not, in his view, “fit the parameters of wrongdoing”. His mounting suspicion was that command, with the possible consent of government, was anxious at the prospect of yet more rumours of war crimes reaching the media, and was accordingly concerned to lend an appearance of having addressed the issue — but not at the expense of its “chosen war heroes”.

“I believe the directive and everything that followed was a very cynical PR move,” he says, pointing out no SAS soldier — as found by the Brereton report — was under any illusion about what was and wasn’t required of them under the laws of war. 

“They didn’t want Roberts-Smith exposed — he would bring down generals and all those who pinned a medal on him would look terrible. But journalists were talking, soldiers were talking, and they needed to find some scapegoats to cover his tracks.”  

The decision to blow the whistle 

It was such perceptions that, when freighted with McBride’s overriding sense of duty to the law, summoned an inevitable collision between the government and what Howard had preemptively labelled the “false criticisms” and “false positions” of those — like McBride — opposed to the conduct of the war. 

Though McBride tried to push his concerns internally at first, even approaching the federal police, it was to no avail. Not unlike a tragic Kafka character striving to meet ostensibly reachable goals but never quite getting there, he found himself increasingly isolated and cast adrift, under pressure to take medical retirement. It was only then, in late 2014, that he arrived at the decision to leak the material to the media. 

As McBride sees things, to have decided otherwise would have been tantamount to condoning the culture of impunity and creeping politicisation of the military that had given rise to one of the most disgraceful chapters of Australian history.

He was also mindful that prudential norms, once weakened and fatally so, invite the spectre of yet more ruinous wars that are liable to unleash the dangerous hubris witnessed in Afghanistan: “Ministers and command knew what was happening, but looked away, and even if they didn’t know, the reality is chain of command is responsible. Soldiers know command is both a privilege and a solemn duty. So its dereliction here is the most shameful part of this story.”

It’s from this vantage point that the twin stories of McBride, the patriot but supposed traitor, and Roberts-Smith, the war criminal but supposed war hero, paint a vividly grim picture of the nation’s soul. 

One is of a confirmed murderer, liar and war criminal, a man whose citations for his Victoria Cross and Medal of Gallantry have been undermined by testimony given on oath in a court of law. A man whose conduct inspired four sergeants and four corporals to report his war crimes and bullying to senior command in April 2013 — the same month Hurley issued the curiously timed directive on the rules of war. And a man who, notwithstanding as much, is yet to be charged. 

The other is a man whose courage to sound the alarm on egregious wrongdoing has cost him his marriage, his home, his job and, at times, his mental health. A man whose suspicions have been vindicated by several independent reviews. A man who faces the prospect of life in jail. And a man whose prosecution has been deemed unworthy of intervention by the attorney-general. 

But he’s also — as he reminds me — a man who stands on the right side of history: “Anzac is about doing the right thing under tremendous pressure; it’s about sacrifice. For that reason, I suppose I can’t really lose.”